IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, :

Plaintiff : CRIMINAL ACTION

:

v. :

: NO. 05-599

RODERICK PAVON SUTTON, :

Defendant :

M E M O R A N D U M

STENGEL, J. March 8, 2010

On July 24, 2006, following a trial by jury, Roderick Sutton was convicted of one

count of armed bank robbery in violation of 18 U.S.C. § 2113(d); one count of using and

carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §

924(c)(1); one count of possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g); and one count of possession of five grams or more of cocaine base with

intent to distribute in violation of 21 U.S.C. § 841(a)(1). Mr. Sutton now seeks to vacate,

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The grounds for Mr.

Sutton’s § 2255 claim are that: (1) his grand jury indictment was invalid because a grand

juror who was recognized by a witness in the case was not recused; (2) police recording

of telephone calls he made while in the Northampton County Jail violated his Sixth

Amendment right to counsel; (3) there was insufficient probable cause for his arrest; and

(4) his trial and appellate counsel rendered ineffective assistance.
 All facts are taken from relevant trial and hearing transcripts.

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I. BACKGROUND1

Mr. Sutton was charged in a four-count superseding indictment with armed bank

robbery, use of a firearm during a crime of violence, possession of a firearm by a

convicted felon, and possession with intent to distribute five or more grams of cocaine

base, on May 11, 2006. These charges stemmed from his involvement in the armed

robbery of the First Commonwealth Federal Credit Union (“Credit Union”) in Easton,

Pennsylvania.

On January 24, 2005, two men wearing black ski masks entered the Credit Union. 

One robber, later identified as Mr. Sutton, pointed two handguns at the female tellers and

ordered them against the wall, while the other stuffed money into a bag. The tellers were

the only two witnesses to the robbery. The robbers left with $15,502 in cash.

Six days later, Mr. Sutton’s girlfriend, Jacqueline Olsen, who was living with him

at the time, called police to report Mr. Sutton’s unauthorized use of her Jeep. At

approximately 2:00 a.m., a police officer arrived at the apartment in which they lived, but

Mr. Sutton was not home. While talking to the police about Mr. Sutton’s use of her car,

Ms. Olsen also told officers that she had been told by a friend that Mr. Sutton left a gun in

their apartment, and she wanted it to be removed. Ms. Olsen told police that she searched

for the gun but had been unable to find it; she did, however, produce three clips of .22

caliber bullets. She then pointed the officers to a hidden compartment in the couch where
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the gun could be. When they opened the drawer to the compartment, the officer found a

.357 caliber revolver inside. Ms. Olsen said the gun did not belong to her.

Ms. Olsen then told police that she had overheard Mr. Sutton on the phone

planning his participation in the robbery and that after it occurred, she saw him with a

large amount of cash. The officer then left the apartment. Police returned to the

apartment around 5:00 a.m. that morning, after they had determined that Mr. Sutton was

on probation for a prior felony conviction. They arrested him for unlawful gun

possession as he attempted to drive away in Ms. Olsen’s vehicle. Police then searched

him incident to the arrest, and found $109 in cash in his pocket with serial numbers

sequential to the serial numbers of the uncirculated bills taken from the Credit Union

during the robbery. Police also searched the Jeep, finding a .22 caliber pistol, a pellet

gun, a black ski mask, and a money wrapper from the credit union.

After arresting Mr. Sutton, the officers obtained consent from Ms. Olsen to

perform a search of her and Mr. Sutton’s apartment. There, they found $4,800 in

sequentially numbered, uncirculated bills, a cell phone box and cell phone, three more

clips of ammunition, a loaded .22 caliber pistol, and several copies of a newspaper story

about the robbery.

Following his arrest, Mr. Sutton waived his Miranda rights and participated in an

interview with FBI agents. He denied knowledge of the robbery and claimed that he

lacked the motive to commit it. At the end of this interrogation, police strip-searched Mr.
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Sutton and discovered a bag containing 5.8 grams of crack cocaine between his buttocks. 

After his arraignment, Mr. Sutton was detained at the Northampton County Jail. 

Ms. Olsen testified against Mr. Sutton at a jury trial held in this Court from July 18

to July 24, 2006. She explained that, after the robbery, she saw Mr. Sutton with

thousands of dollars in cash “sprawled” across their couch and that later that night, she

heard Mr. Sutton on the phone with a friend discussing his participation in the robbery. 

She testified that Mr. Sutton told her he had participated in the robbery. Olsen stated that

she recognized the sweat suit worn by one of the robbers on the surveillance tape as

belonging to Mr. Sutton. In his recorded calls to Ms. Olsen from prison, Mr. Sutton made

a number of incriminating comments, asking her why she had not warned him before his

arrest so he could have fled, telling her that she should have kept the money instead of

telling the police about the robbery, and confirming his knowledge of the guns found by

police. 

The jury found Mr. Sutton guilty on all counts. On October 24, 2006, this Court

sentenced Mr. Sutton to 252 months’ imprisonment, 8 years of supervised release,

$15,502 in restitution, and a $400 special assessment. The order of judgment and

commitment was entered on November 1, 2006. Mr. Sutton filed a notice of appeal on

November 6, 2006, and submitted his Appellate Brief on May 7, 2007. The Third Circuit

affirmed Mr. Sutton’s conviction in an order issued on March 28, 2008.
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II. DISCUSSION

Mr. Sutton has filed this motion pro se. Although pro se pleadings must be

construed liberally, a pro se petitioner must be able to prove a “set of facts in support of

his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 520–21, 92

S.Ct. 594 (1972). A prisoner in custody may move the sentencing Court to “vacate, set

aside, or correct” a sentence imposed “in violation of the Constitution or laws of the

United States.” 28 U.S.C. § 2255. Section 2255 permits habeas relief for an error of law

or fact constituting a “fundamental defect which inherently results in a complete

miscarriage of justice.” United States v. Eakman, 378 F.3d 294, 297 (3d Cir. 2004) (citing

Hill v. United States, 368 U.S. 424, 428 (1962)).

Section 2255 provides that “[u]nless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a

prompt hearing thereon, determine the issues and make findings of fact and conclusions

of law with respect thereto.” 28 U.S.C. § 2255. Conversely, a court may dismiss a

Section 2255 motion where the records and files show conclusively that the movant is not

entitled to relief. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).

A. Grand Jury Proceedings and Sixth Amendment Claims

A habeas petitioner is procedurally barred from asserting a claim in a Section 2255

motion that he could have, but failed to raise in his direct appeal. See United States v.

Frady, 456 U.S. 152, 165, 102 S.Ct. 1584 (1982). Once claims have been procedurally
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defaulted, the petitioner can only overcome the procedural bar by showing “cause” for the

default and actual “prejudice” from the alleged error or that he is “actually innocent.” Id.

at 167. A defendant need not demonstrate cause and prejudice when he raises a claim of

ineffective assistance of counsel. See United States v. DeRawal, 10 F.3d 100, 104 (3d

Cir.1993). Ineffective assistance of counsel claims are generally not considered on direct

appeal and are best brought by the defendant in a collateral attack such as this. U.S. v.

Thornton, 327 F.3d 268, 272 (3d Cir. 2003).

Mr. Sutton’s first and second grounds for relief were raised by his trial counsel in

pre-trial motions but were not raised by his appellate counsel on direct appeal to the Third

Circuit. Mr. Sutton maintains that his indictment was unconstitutionally issued because

of the presence of a juror on the grand jury panel whom Ms. Olsen recognized as another

employee from Aetna, the company for which she worked. Mr. Sutton raised this claim in

a pretrial motion to dismiss the indictment filed on July 14, 2006 (Document # 68). In

that motion, Mr. Sutton set forth, in terms nearly identical to those he now uses in his

Section 2255 motion, his claim that the presence of that juror on the panel “tainted” the

grand jury proceedings. He argued then as he does now, that, instead of instructing this

juror not to participate in the grand jury proceedings related to Mr. Sutton, the

government should have removed her entirely from the panel. The government issued a

response to Mr. Sutton’s pre-trial motion (Document # 69). In a ruling from the bench

and in a written order (Document # 70), this Court denied Mr. Sutton’s motion.
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Mr. Sutton’s counsel also raised in a pre-trial motion, but not on direct appeal, the

claim that statements he made in prison should not have been used against him at trial. 

Mr. Sutton filed a motion to suppress statements on May 17, 2006 (Document # 27) in

which he raised three separate grounds for suppression. One was the Sixth Amendment

claim he now makes in his § 2255 motion. In terms he once again recycles here, Mr.

Sutton argued that after his right to counsel attached, Ms. Olsen, acting as a government

informant, elicited incriminating information from Mr. Sutton when he called her from

the Northampton County Jail. In a memorandum and order issued on June 8, 2006

(Document # 53), this Court denied Mr. Sutton’s motion, finding that his Sixth

Amendment rights were not violated because (1) Ms. Olsen did not act as a government

agent, and (2) she did not deliberately elicit incriminating information from Mr. Sutton.

Mr. Sutton raises these claims both independently and as part of his ineffective

assistance of counsel claim. These claims are procedurally defaulted, because Mr. Sutton

could have raised them on direct appeal but failed to do so. His counsel's failure to raise

them will be examined in the context of Mr. Sutton’s ineffective assistance of appellate

counsel claim.

B. Ineffective Assistance of Counsel

In order to prevail on his ineffective assistance of counsel claims, Mr. Sutton must

meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984); United States v. Smack, 347 F.3d 533, 537 (3d Cir. 2003). “The benchmark for
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judging any claim of ineffectiveness must be whether counsel's conduct so undermined

the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland, 466 U.S. at 686. Mr. Sutton must meet both

parts of Strickland’s two part test for deficiency and prejudice. “First, the defendant must

show that counsel's performance was deficient,” that is, “that counsel's representation fell

below an objective standard of reasonableness.” Id. at 687–88. The measure for counsel's

performance under the first prong is “whether counsel's assistance was reasonable

considering all the circumstances.” Id. at 687–88. “Second, the defendant must show that

[counsel's] deficient performance prejudiced the defense.” Id. at 687. The defendant must

demonstrate that “there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.” Id. at 694.

Because a failure on either prong of the Strickland test allows this Court to deny

Mr. Sutton’s claim, we “need not determine whether counsel’s performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice . . . that course should be followed.” Id. 

Mr. Sutton has two ineffective assistance claims: one based on the performance of

his trial counsel, and the other based on the performance of his appellate counsel.

1. Ineffective Assistance of Trial Counsel

Mr. Sutton claims that his trial attorney, Benjamin Cooper, Esq., “didn’t properly
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raise the right issues in pre-trial motions to suppress not just all the statements made after

Mr. Sutton’s unlawful warrant less [sic] arrest, but all illegally obtained physical

evidence” and “failed to object at trial to the mis leading [sic] jury instructions the judge

modified without notifying the defense.” He provides no further details beyond these

conclusory statements. 

Effective assistance of counsel does not “demand that every possible motion be

filed, but only those having a solid foundation.” United States v. Hines, 470 F.2d 225,

232 (3d Cir. 1973). Mr. Sutton’s trial counsel filed no fewer than nine pre-trial motions

(Documents ## 21–29), including a motion to suppress Mr. Sutton’s statements and a

motion to exclude evidence of Mr. Sutton’s prior convictions at trial. Mr. Sutton fails to

articulate how trial counsel’s failure to file a motion to suppress “all illegally obtained

evidence” fell below objective standards of reasonableness or how this failure was

prejudicial. Ms. Olsen consented to the police searches of her home and vehicle that

resulted in discovery of the physical evidence—including firearms and cash proven to be

taken from the Credit Union during the robbery—that was used against Mr. Sutton at

trial. There was no reason to suppress this evidence. Trial counsel’s failure to file a

frivolous motion to suppress physical evidence was not prejudicial. Mr. Sutton’s

ineffectiveness claim on this ground is without merit.

Mr. Sutton fails to articulate how this Court modified any jury instruction given at

trial in a way that misled the jury. The Third Circuit has ruled that a habeas petitioner
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fails to meet his burden of showing that counsel’s representation fell below an objective

standard of reasonableness when his claims are supported by no more than “vague and

conclusory allegations” of “unspecified” failures. Zettlemoyer v. Fulcomer, 923 F.2d

291, 298 (3d Cir. 1991). Without facts supporting his contention—some explanation of

which jury instruction was misleading and how counsel’s representation was

unreasonable for failing to object to it—this court simply cannot find that he is entitled to

relief on this ground.

Therefore, Mr. Sutton’s claim of ineffective assistance of trial counsel is denied.

2. Ineffective Assistance of Appellate Counsel

Mr. Sutton was represented in filing his appeal by Robert Epstein, Esq., Michael

Raffaele, Esq., and David McColgin, Esq. Mr. Sutton’s claim of ineffective assistance at

the appellate level stems from his belief that his attorneys should have included three

other issues as grounds for the direct appeal of his conviction. He claims he “abetted

[them] to argue at least three other seriously prejudicial preserved issues on his Direct

Appeal that he knew would be favorable to him at the appellate level,” “pleaded with

them profusely to include the issues” and that they did not, appealing instead only one

issue. Mr. Sutton states that his appellate attorney informed him that it “would only

weaken your appeal to include the issues that you want.” He believes that, had his

attorneys included these issues in his appeal, “the out come [sic] would have, no doubt,

been in his favor.” In his response to the Government’s reply to his motion, Mr. Sutton
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adds that he was “not even consulted by his attorneys of what issues would be in his best

interest to raise” and “was never informed of what issue(s) was raised in his Direct

Appeal, until he received the fully completed brief/appendix.”

Mr. Sutton also claims that he received a “certified special attorney-client

correspondence” letter from his appellate attorneys following denial of his direct appeal

that stated “we filed a frivolous motion ourselves on your behalf.” He claims this

admission proves that his appellate attorneys’ assistance was unreasonable. This letter is

not attached to Mr. Sutton’s motion.

While it is true that Mr. Sutton is entitled to effective assistance of counsel at the

first level of appeal, an appellate attorney “need not advance every argument, regardless

of merit, urged by the appellant.” Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830

(1985) (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308 (1983)) (emphasis in

original). However, the attorney must be available to assist in preparation of an appeal,

and must “play the role of an active advocate.” Id. 

Mr. Sutton does not identify the “three other seriously prejudicial preserved

issues” he claims his appellate counsel should have raised on his direct appeal. Mr.

Sutton’s appellate attorneys pursued a Fourth Amendment suppression issue, which is

discussed below. This Court will therefore consider whether it was error for them to fail

to raise the two other claims Mr. Sutton asserts here: that the Grand Jury proceedings

leading to his indictment were unconstitutional, and that his Sixth Amendment rights
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were violated when prison officials recorded the calls he made from the Northampton

County Jail to Ms. Olsen.

The first claim, that there was unconstitutional error in Mr. Sutton’s grand jury

indictment, is without merit. Ms. Olsen recognized one of the grand jurors as another

employee at Aetna, not as a friend or even as an acquaintance. That grand juror did not

recognize Ms. Olsen. In an abundance of caution, the government instructed the juror not

to participate further in Mr. Sutton’s case, and she agreed. She was reminded at the close

of grand jury proceedings not to participate in deliberations, and she again agreed. In

sum, there is no evidence that the grand juror was biased, and in any event, she did not

take part in issuing the indictment against Mr. Sutton. This claim is meritless. Because it

would have been rejected had Mr. Sutton’s counsel raised it in his direct appeal, Mr.

Sutton has failed to show prejudice on this ground.

The second claim, that Mr. Sutton’s Sixth Amendment rights were violated by the

admission of recorded conversations during his time at the Northampton County Jail, is

also without merit. As this court stated in its written memorandum denying Mr. Sutton’s

motion to suppress on this ground (Document # 53): 

“The government violates a defendant’s Sixth Amendment right to counsel

where: (1) the defendant’s right to counsel has attached at the time of the

alleged infringement; (2) the informant acted as a government agent; and (3)

the informant deliberately elicited incriminating information from the

defendant. See Matteo v. Superintendent, SCW Albion, 171 F.3d 877, 892 (3d

Cir. 1999), cert. denied, 528 U.S. 824 (1999) (citation omitted). In this case,

I find that Mr. Sutton’s Sixth Amendment rights were not violated because: (1)

Ms. Olsen did not act as a government agent; and (2) she did not deliberately
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elicit incriminating information from Mr. Sutton.”

Ms. Olsen made no calls to Mr. Sutton while he was incarcerated at the

Northampton County Prison; he initiated all calls to her after he had agreed in writing to

the telephone usage procedure at the Jail, which clearly states that all calls are recorded

and subject to review by law enforcement officials. There is no evidence Ms. Olsen was

a “government informant.” This is yet another frivolous claim that would have been

denied had it been raised on direct appeal. Mr. Sutton has therefore failed to show

prejudice as a result of his appellate counsel’s failure to raise this claim.

Mr. Sutton’s claim of ineffective assistance of appellate counsel is denied.

C. Fourth Amendment Violations 

A habeas petitioner is limited in the arguments he may raise as part of a collateral

attack on his conviction and sentence. Section 2255 “may not be employed to relitigate

questions which were raised and considered on direct appeal.” United States v. DeRewal,

10 F.3d 100, 105 n.4 (3d Cir. 1993); see also United States v. Pelullo, 2008 WL 5432635,

at *3 (3d Cir. Jan.5, 2009). Moreover, “[o]nce a legal argument has been litigated and

decided adversely to a criminal defendant at his trial and on direct appeal, it is within the

discretion of the district court to decline to reconsider those arguments if raised again in

collateral proceedings under 28 U.S.C. § 2255.” United States v. Orejuela, 639 F.2d

1055, 1057 (3d Cir. 1981); see also United States v. Parker, 2006 WL 759689 at *2

(E.D.Pa. March 23, 2006) (denying the first three claims raised in petitioner’s Section
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2255 petition because they were raised and rejected by the Third Circuit); Lamar v.

United States, 2007 WL 1959273 at *2 (D.N.J. July 5, 2007).

The third ground for Mr. Sutton’s § 2255 claim - that his arrest violated the Fourth

Amendment - was raised during pre-trial proceedings and on his direct appeal to the Third

Circuit. In his motion to suppress (Document #27), Mr. Sutton argued that because Ms.

Olsen was not a reliable informant and her knowledge of Mr. Sutton’s involvement in the

bank robbery was based on hearsay, police lacked probable cause to arrest Mr. Sutton

based on her tip. This argument was discussed and dismissed in this court’s written

opinion denying Mr. Sutton’s suppression motion (Document #53). Accordingly, Mr.

Sutton’s Fourth Amendment claims will be denied without consideration on the merits.

IV. CONCLUSION

Mr. Sutton’s Section 2255 petition is denied in its entirety. Because the records

and files show conclusively that Mr. Sutton is not entitled to relief, his motion is denied

without a hearing.